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Evans v. State

United States District Court, E.D. Louisiana

February 7, 2019

SYLVESTER LARNELL EVANS, JR.
v.
STATE OF LOUISIANA

         SECTION: “I” (3)

          REPORT AND RECOMMENDATION

         Pro se plaintiff Sylvester Larnell Evans, Jr. filed the above-captioned matter in this Court in which he sues the State of Louisiana for, inter alia, allegedly having “repeatedly perverted the law by bringing completely false and fabricated charges against [him]. Whom [he] caught red handed violating numerous laws and altering court documents.” [Doc. #1 at p. 1]. Evans's employer is “The Almighty God, ” [Doc. #2 at p. 1], and he alleges that “God . . . has planted [him] in this land as a domestic spy.” [Doc. #1 at p.1].

         On December 27, 2018, this Court ordered Evans to show cause by Monday, January 28, 2019 as to why this case should not be summarily dismissed under 28 U.S.C. § 1915(e)(2)(B)(i-iii) on the ground that the Eleventh Amendment bars his claims against the state and/or for failing to state a claim on which relief may be granted. Evans has now done so, albeit late.

         28 U.S.C. § 1915(e)(2)(B) provides for summary dismissal sua sponte, should the Court determine that a case is frivolous. Section 1915(e)(2)(B) provides in pertinent part as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that B
* * *
(B) the action or appeal B
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B)(i)-(iii) (emphasis added). In plain language, Section 1915 requires dismissal if the Court is satisfied that the case fails to state a claim on which relief may be granted.[1]

         The Court has permitted the plaintiff to proceed in forma pauperis in the instant proceeding under the provisions of 28 U.S.C. §1915(a). However, summons has not issued in order to allow the Court to review plaintiff's complaint to determine whether it satisfies the requirements of the federal in forma pauperis statute. On its face, plaintiff's complaint fails to meet the requirements of the statute. There exists no absolute right to proceed in forma pauperis in federal civil matters; instead, it is a privilege extended to those unable to pay filing fees when it is apparent that the claims do not lack merit on their face.[2]

         Under the Eleventh Amendment, private individuals may not sue a non-consenting state in federal court. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001). This immunity applies irrespective of the relief sought and irrespective of whether jurisdiction is asserted under this Court's original or pendent jurisdiction. Oneida County, N.Y. v. Oneida Indian, 470 U.S. 226 (1985); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984); Bush v. Viterna, 795 F.2d 1203, 1207-08 (5th Cir. 1986). This immunity from suit is subject to two exceptions: The state may waive it and Congress may abrogate it. Unless a state has waived its immunity or Congress has abrogated it, the Eleventh Amendment bars the state's citizens from filing suit against the state in federal court for either monetary damages or injunctive relief. Cozzo v. Tangipahoa Parish Council-President Gov't, 279 F.3d 273, 280 (5th Cir. 2002); Tyson v. Reed, Civ. A. No. 09-7169, 2010 WL 360362, at *3 Ed. La. Jan. 21, 2010). The United States Fifth Circuit Court of Appeals has noted:

By statute, Louisiana has refused any such waiver of its Eleventh Amendment sovereign immunity regarding suits in federal court. See La. ...

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